Analysis and Commentary on Uncategorized
“I Would Take Just Being Left Alone”

Cornell professor Joseph Margulies explains that social forgiveness—that is, restoring membership to someone who has committed a wrong against society—is, in the words of one reader “being left alone, free of probation, registration, or record.” Professor Margulies points out that respect for the rules of the group and tolerance for others are essential components of membership in (and reentry into) society.

Federal Bankruptcy Law Is Toxic for Child Sex Abuse Victims

Marci A. Hamilton—a Professor of Practice in Political Science at the University of Pennsylvania and the founder and CEO of CHILD USA—explains why federal bankruptcy law causes harm to child sex abuse victims. Professor Hamilton points out that numerous Catholic dioceses, as well other large, powerful groups like the Boy Scouts of America and USA Gymnastics have used Chapter 11 to keep their secrets and avoid fairly compensating victims.

Donald Trump Wants to Use the Firing Squad, Mass Executions, and Videos to Turn Executions Into Reality TV

Amherst professor Austin Sarat comments on recent reporting that Donald Trump wants to use the firing squad, mass executions, and videos to heighten the drama of capital punishment. Professor Sarat argues that what Trump says about executions reveals the depth of his fascination with ghoulish things and that his latest death penalty musings offer a frightening reminder of the cruelty he would unleash if he is returned to the Oval Office.

For Any Good to Come of It, We Must Judge the Murder of Tyre Nichols in a Forgiving Spirit

In this fifth column in a series about the murder of Tyre Nichols by Memphis police officers, Cornell professor of government Joseph Margulies argues that, for any good to come of Nichols’s death, we must judge his killers in a forgiving spirit. Professor Margulies explains what it means to judge in a forgiving spirit: to assess the actions of another anchored in the unshakeable belief that those who have done wrong are nonetheless one of us.

Anger, Democracy, and the Goldilocks Dilemma

Cornell Law professor Joseph Margulies continues his discussion of why anger can benefit democracy, but he rebuts claims that only anti-democratic solutions can remedy the harms that are supposedly being inflicted on our society. Specifically, Professor Margulies points out as evidence of effective democratic processes the imminent passage of the Inflation Reduction Act of 2022 and the rejection by Kansas voters of a state constitutional amendment that could allow the legislature to restrict or prohibit abortions in that state.

The Implication of the Dobbs Decision for Casey

Middle Tennessee State University professor John R. Vile explains what the Supreme Court’s decision this term in Dobbs v. Jackson Women’s Health Organization implies about the Court’s view of its prior decision in Planned Parenthood v. Casey. Professor Vile argues that it was unlikely a doctrine such as substantive due process could ever adequately resolve such a contentious issue as abortion and predicts that rigid state legislation that makes no exception for cases of rape, incest, and the life of the mother will face similar backlash.

Viking River Cruises Muddies the Waters

Illinois Law professor Matthew Finkin comments on the Supreme Court’s recent decision in Viking River Cruises v. Moriana, pointing out several issues in the Court’s reasoning and conclusion as to the arbitration questions raised in that case. Professor Finkin argues that the decision incites three lines of inquiry—historical, empirical, and doctrinal—and then begs them, ultimately leaving more questions than it resolves.

American Law’s Worst Moment(s), 2021

Amherst professor Austin Sarat reflects on American law’s worst moment(s) in 2021, noting that this year it was not a single moment but a series of events beginning with the January 6 insurrection. Professor Sarat argues that what followed the insurrection and ratified it demonstrate that Trump and his cronies are lining this country up for an unprecedented constitutional crisis in 2024, and Democrats have done nothing to resist the slow-moving coup.

What the Kyle Rittenhouse Verdict Tells Us About Domestic Violence

Cornell Law professor Sherry F. Colb reflects on what the acquittal of Kyle Rittenhouse tells us about domestic violence and society’s expectations based on gender. Professor Colb argues that the law of self-defense, especially as it is developing away from the duty to retreat, demonstrates gender inequality within the criminal justice system by favoring testosterone-fueled vigilantes over the women who choose to survive rather than succumb to domestic violence.

Substantial Questions of Statutory Authority Confront OSHA’s COVID-19 Vaccination Emergency Temporary Standard

NYU Law professor Samuel Estreicher and 3L Ryan Amelio comment on the unusual move by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) decision to require employee vaccinations for employers with a total of 100 or more employees. Estreicher and Amelio explain why it is unclear whether the Agency has authority to mandate vaccinations and testing.

The Court’s Partisan Rules on Executive Power

Steven D. Schwinn, a professor of law at the University of Illinois Chicago John Marshall Law School argues that the Supreme Court’s order last week effectively striking down the COVID-19 eviction moratorium issued by the Centers for Disease Control reflects the Court’s highly partisan approach to executive authority. Professor Schwinn points out that only partisanship can explain why Court upheld the Trump administration’s travel ban in Trump v. Hawaii and struck down the Biden administration’s eviction moratorium.

Supreme Court to Decide if International Commercial Arbitrations Are “Foreign or International Tribunals” to Whom U.S. Federal Courts Can Provide Discovery Assistance

NYU Law professor Samuel Estreicher and appellate lawyers Rex Heinke and Jessica Weisel comment on a case the U.S. Supreme Court will hear next term that presents the question what role, if any, federal courts should play in facilitating discovery in foreign arbitrations. The authors argue that while the case seems to turn on a simple matter of statutory interpretation, the case may shed new light on how the current Court approaches traditional interpretive tools.

The Evangelization of Lawlessness: RFRA Was the First “Big Lie”

Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, argues that the federal Religious Freedom Restoration Act (RFRA) was the first “big lie” in that purported to “restore” case law but actually gave religious actors the right to be above the law. Professor Hamilton notes two bills that have been introduced in Congress that would take measures to carve back RFRA’s destructive reach and which would not, contrary to some claims, threaten true religious liberty.

Burrowing and Boobytraps: How Trump’s Eleventh-Hour Maneuvers Differ From Those of Previous Lame-Duck Presidents—and How They Don’t

Cornell law professor Michael C. Dorf argues Trump’s actions during his final months are different from those of past presidents, and particularly dangerous. As Dorf explains, Trump is aiming to do damage for its own sake, whereas other lame-duck presidents have at least sought to advance policy aims in pursuit of some conception of the common good.

Liability Shield Will Not Lead to a Safer Reopening

NYU law professor Samuel Estreicher and rising 2L Elisabeth H. Campbell argues that a liability shield for companies who follow federal administrative guidance in reopening workplaces during COVID-19 will not lead to significantly less litigation, nor will it help ensure workplaces are safe. Estreicher and Campbell explain why the liability shields being proposed would not preclude protracted litigation.

When the Paranoid President Meets the Supreme Court

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on Tuesday’s oral argument before the U.S. Supreme Court in Trump v. Vance, which raises the question of whether the President should be able to shield his tax and financial records from a congressional subpoena. Sarat urges that the Court see through the grandiosity and paranoia of the President’s legal claims, arguing that the future of a government of limited powers and the rule of law hangs in the balance.

How the Arizona Legislature Has Exceeded its Permissible Role in Filling US Senate Vacancies: Part Two in a Series

In this second of a series of columns, Illinois law dean and professor Vikram David Amar explains how the Arizona legislature has exceeded its power under the Seventeenth Amendment in prescribing how the governor must make a temporary appointment to a vacant US Senate seat. Amar points out that under the most likely reading of the Amendment, state legislatures may empower the governor to make such temporary appointments but may not further participate in the process.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more